Belgium – Council of State, 31 October 2010, Nr. 164.283
Keywords:
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
Facts:
The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application, on the basis that the applicant had never been politically active herself, that she had completed her prison sentence and, subsequently, had been able to function almost undisturbed for 17 years. Regarding the social ban and its consequences, the CGRS considered: “that it should be noted that the problems that you mention (…) fall under the label of discrimination and are therefore insufficiently weighty in order to be considered as a well-founded fear of persecution in the sense of the 1951 Refugee Convention.” The applicant lodged an appeal with the Council of State in order to obtain the suspension of the execution of this decision (old procedure).
Decision & reasoning:
The Council of State considered: “that discriminatory measures are not necessarily insufficiently weighty to be considered as a well-founded fear of persecution in the sense of the 1951 Refugee Convention; that discrimination can only in exceptional circumstances be equated with persecution; that this will be, for example, the case when the discriminatory measures have consequences that cause serious harm to the person concerned, for example serous limitations to practicing a profession, to practicing one’s religion or to getting access to educational institutions that are otherwise open to everyone; that, when the discriminatory measures as such are not serious, they can nevertheless have as a consequence that the person concerned rightfully has a fear of persecution when those measures provoke a feeling of fear and insecurity regarding his/her own fate; that the question whether those discriminatory measures as such should be equated to persecution can only be answered in the light of all the circumstances of the situation.”
In the case at hand, the Council of State found that the CGRS’ conclusion that the applicant’s problems fell under the label “discrimination” and did not amount to persecution, was not satisfactory. The CGRS should have examined the severity of the problems prior to finding that they were insufficiently weighty in order to be considered as a basis for a well-founded fear of persecution. Problems of discrimination can also have such severe consequences that they fall under the scope of the 1951 Refugee Convention.